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Improving Judicial Settlement Conferences

Professors Molot, Fuller, Fiss, and Resnik, among others, have expressed concerns about the unbounded, unchecked, unbridled, and virtually unfettered judicial discretion of American trial court judges who preside over civil case settlement conferences. I am also concerned. But the best response is not to abolish or severely restrict judicial settlement conferences. Rather, it is to add more formality and more written guidelines. New guidelines would discourage each trial court judge from marching to the beat of her own drummer. These guidelines should involve, as suggested by Professor Fuller, both more adversary control and more detailed and written criteria. In addition, new guidelines should expressly recognize that the claims and interests that might be discussed at judicial settlement conferences are far broader than the justiciable claims that might be discussed at trial preparation conferences. Thus, civil case settlement talks and civil case settlements subject to same-case judicial enforcement can involve many more claims, interests, and people than would have been involved in any adversarial proceedings. New written guidelines for federal and state courts should follow existing rules and statutes of general and particular applicability already operating in some American trial courts. As with pleading and discovery, new settlement conference guidelines should speak to differences between civil actions, including some distinctions between significant cases and routine cases and between civil cases based upon the amounts in controversy.